No second look at Uighurs?

Posted Thu, April 22nd, 2010 1:25 pm by Lyle Denniston

A federal judge whose writings on detainees’ rights have been repeatedly overturned by the Supreme Court suggested on Thursday that the Justices have given the D.C. Circuit Court no reason to reconsider a ruling barring any judge from ordering Guantanamo Bay prisoners sent to the U.S. to live, even temporarily. In fact, Senior Judge A. Raymond Randolph said at a Circuit Court hearing, the Supreme Court may have gotten the facts wrong when it returned the case of Kiyemba v. Obama to Randolph’s Court about eight weeks ago for a look at “the new facts.” He also suggested that the Court may have simply wanted to avoid making a ruling itself.

Twice suggesting that nothing has actually changed in the facts of the case, Randolph said the Circuit Court panel should simply reinstate the prior ruling as he rebuffed even a suggestion from a Justice Department lawyer that the panel might want to narrow down its constitutional reasoning against the pleas for release by five Chinese Muslim Uighurs — cleared for release from Guantanamo, but still there. If the case is not returned to a District Court to examine the facts anew, it appears likely that the Uighurs’ lawyers will seek to appeal again to the Supreme Court — a process that perhaps could take another year.

The case, now known informally as “Kiyemba I” to distinguish it from an ongoing separate case of the same name, was sent back by the Supreme Court on March 1, after the Justices had agreed to hear the Uighurs’ appeal and were getting ready to hold oral argument on it. The Court’s order said no court had yet passed upon the new facts that had emerged about possible resettlement of the Uighurs, so the Circuit Court should decide first what to do about those developments. During Thursday’s 45-minute hearing, it appeared that two of the three judges on the panel are split, with Randolph wanting to stand pat and Judge Judith W. Rogers in favor of a review of the facts to see if the legal outcome should be any different. The third member of the panel, Judge Karen LeCraft Henderson, did not tip her hand, saying nothing throughout.

Judge Randolph suggested that, if anything about the Uighurs’ fate had changed, it was that Congress had passed five new laws barring them from ever being sent to the U.S. to live. Those laws, he said, “are consistent with our opinion” holding that transfers of detainees from Guantanamo are a “political question.” Unless those laws are unconstitutional — and Randolph did not even hint that he thought they might be — there would be no reason not to reinstate the prior ruling against relocating the Uighurs to the U.S., he said.

Sabin Willett, a Boston lawyer for the five Uighurs still involved in the case and still awaiting resettlement, argued that Congress’s action was unconstitutional, since the Uighurs had each won a court order requiring their release from Guantanamo, and Congress had “targeted” them in the new legislation against their entry into the U.S., scuttling their release orders and thus making the legislation an invalid suspension of the habeas writ.

Sharon Swingle, a Justice Department staff lawyer urging the Circuit Court to put its ruling back into effect, with minor modifications, defended the constitutionality of Congress’s action. saying the new laws had filled a gap in legislation for determining the legal fate of Guantanamo prisoners. She argued that the bar to entry did not amount to a suspension of the writ, but simply reinforced the customary powers of the Congress and the White House to determine immigration into the U.S.

Although the Department insists, and Swingle reiterated Thursday, that all of the Uighurs have had offers to be resettled in “an appropriate” country other than their homeland of China, where they fear torture or death as a persecuted religious minority, Willett argued that the facts are not clear that any of the offers would, in fact, mean an “appropriate” resettlement. That, he said, was what needed to be explored at a factual hearing in District Court. “There is no record before you,” he said. A Pacific island nation that has accepted some of the Uighurs (Palau), Willett noted, is not a Muslim country, will not allow Uighurs to become citizens, and would not even allow them to own property. He also expressed concern that the Uighurs get assurance, wherever they go, that they would not be returned to China.

Judge Randolph was sharply critical of a suggestion by the Uighurs’ lawyer that, if a judge decides the U.S. no longer has the authority to detain a Guantanamo prisoner, that prisoner has a right to be brought to the U.S. to appear in court and obtain a release. That, attorney Willett contended, is a remedy that ultimately has to be available if the habeas writ is to mean anything in real-world terms. But Judge Randolph gave Willett a short lecture on the history of habeas back to 1679, and added that the five laws passed by Congress against detainees’ entry to the U.S. took away the power of judges to bring any detainee into a court in the U.S. for release.

When Department attorney Swingle also disputed Willett’s argument that a judge must have the power to order release of a Guantanamo detainee by bringing them to a court in the U.S., Judge Randolph wondered if “KSM” — a reference to the alleged mastermind of the 9/11 terrorist attacks, Khalid Sheikh Mohammed — might qualify for entry into the U.S. under Willett’s theory. Swingle did not reply directly, but did say there are “a number” at Guantanamo who represent “a significant threat” to the safety of the U.S.

Judge Rogers, exploring how far the Justice Department argument against court authority to rule on detainees’ ultimate legal fate would reach, asked Swingle whether a judge would have authority to rule on whether it was “appropriate” to transfer a detainee to a country where torture or even death might be in prospect. The Department lawyer said that the issue of the “appropriateness” of any transfer was for the government, not the courts. (The Department has repeated told the courts, though, that it would not approve transfer of a detainee to a country where the government deemed it was “more likely than not” that torture or death would follow.)

Attorney Willett attempted to shore up the argument that the Circuit Court should not simply reinstate its prior ruling by indicating that the Supreme Court had taken an interest in the case, and thus its return of the case had to mean something. The Court, the lawyer noted, did not have to agree to hear the case, but it did. It could have simply thrown it out after agreeing to hear it, but it didn’t, he noted. Since the Court is interested in the facts, Willett said, it would not take much time to develop them, and the case might then be resolved without having to go back up to the Supreme Court. But Judge Randolph countered that the Justices may have decided they just did not want to rule on the case.

Judge Randolph also indicated that he did not see any reason why the Circuit Court should back off from a part of its prior decision indicating that detainees have no constitutional right to claim that their confinement violated constitutional due process — a claim that the detainees are still seeking to pursue. That rejection, the judge said, is the law of the Circuit; the remark came in response to a suggestion by the government’s lawyer that perhaps the Court would want, in reinstating its ruling, to narrow what it said against any due process claim, and put the rejection of the detainees’ claims on a narrower constitutional footing.

After the public hearing, the panel had the courtroom doors closed and spectators excluded as the judges held a hearing with the lawyers about secret facts that may be at issue in the case. The lawyers also were unavailable after the hearing, since court aides ordered the hallway outside the courtroom — a customary place for post-hearing encounters — cleared.

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